It’s been four decades since Roe v. Wade was handed down, and that's how long the anti-abortion movement has been coming up with strategies to reverse it. They've been unsuccessful so far. But they're getting increasingly creative.
"Fetal pain," based on shaky medical evidence that the fetus can experience pain after 20 weeks, has become the best-known rationale for banning abortion at that threshold. There are others. Mindful of accusations that they don't care about women, anti-abortion activists have looked for grounds on which to "protect" them.
One of the arguments made in support of Arizona’s 20-week abortion ban by Americans United for Life and anti-abortion doctors, for example, is that women need to be prevented from having later abortions for their own good, because "researchers have also found that women who undergo abortions at 13 weeks or beyond report ‘more disturbing dreams, more frequent reliving of the abortion, and more trouble falling asleep.” (They also point out that such abortions are medically riskier, but that's in comparison to earlier abortions. If they're truly concerned about safety, the more relevant statistic is that childbirth is riskier still, 14 times so.)
The Supreme Court has yet to include bad dreams in its abortion jurisprudence--or, for that matter, fetal pain. But the abortion bans rippling across state legislatures are meant to offer as many routes as possible for the Justices to change their minds--or really, just one Justice, Anthony Kennedy.
“It’s almost a spaghetti-against-the-wall argument,” says Janet Crepps, senior counsel at the Center for Reproductive Rights.
Twenty weeks is well before viability, the dividing line Kennedy himself helped set for when abortions cannot be banned. But the last time the Court ruled on abortion, in 2007, it upheld the so-called federal “Partial Birth Abortion Ban,” reversing its own precedent.
“That signaled that they were willing to at least consider a little bit more--to give the states a bit more freedom to pass laws that people in their states were wanting,” says Charmaine Yoest, president of Americans United for Life. “We try to work within that framework. It’s a very gray area.”
Both sides believe that if Justice Kennedy can be persuaded to waver on the viability line, all bets are off.
“If there’s one reason why you can move the line off of viability,” says Crepps--whether “fetal pain” or purported risks to the woman--“then there are a hundred reasons.” At that point, why stop at 20 weeks?
Taking the long view
The Arizona 20-week ban was eventually deemed unconstitutional by the Ninth Circuit Court of Appeals, a court traditionally friendly to abortion rights, but the law's defenders have signaled they'll take it to the Supreme Court. Meanwhile, if the copycat law recently passed over vociferous protest in Texas is challenged in court, it will eventually reach federal judges appointed by Republicans. Judging by past decisions, they might find a way to uphold it, creating a split in state rulings that will give the Supreme Court a strong impetus to examine the laws.
That would be no accident. All this is the very deliberate groundwork laid by the savviest legal strategists in the anti-abortion movement. The strategy relies on not seeming to go too far or too fast, either for the public or the courts.
That’s why James Bopp, general counsel of the National Right to Life Committee (and the man behind Citizen's United) has always openly opposed laws that ban abortion outright, like Personhood and Human Life amendments. In a 2007 memo, he warned of one such law, “The timing of such an effort is clearly premature, and it could have a very destructive result given the current makeup of the Supreme Court.” He worried that the resulting backlash from the court would actually strengthen Roe, both as a super-precedent and with a new constitutional doctrine, maybe even the equal protection that Ruth Bader Ginsburg has often argued for.
In the late eighties, Bopp admitted in an interview, he thought the Court was ready to overturn Roe, and instead, in Planned Parenthood v. Casey, it reaffirmed a woman’s right to an abortion before viability, while opening the door for all restrictions that fell short of a ban.
Now, Bopp believes that the 20-week bans are a winning formula for chipping away access to abortion. "When you have a willing court, then you pursue what they’re willing to do," he told msnbc. "And they are clearly not willing to countenance overturning Roe v. Wade."
On the one hand, Justice Kennedy has held to the principle that states can't ban abortion before viability. On the other hand, Kennedy has been receptive to fuzzy science before. In 2007, he wrote in Gonzalez v. Carhart, the last major abortion case that the court considered, “Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.” Despite finding in the same case “no reliable data to measure the phenomenon” of women regretting their abortions, Kennedy went on to cite it to uphold a federal abortion restriction anyway.
That gives hope to anti-abortion activists claiming that preventing "fetal pain" at 20 weeks should be considered a state interest, even though there's no solid evidence it even exists. A research review in the Journal of the American Medical Association concluded that “the capacity for functional pain perception in preterm neonates probably does not exist before 29 or 30 weeks,” but all it takes is finding a doctor or two to testify otherwise.
Maybe that's why Bopp won’t concede in an interview that the 20-week laws, which he helped popularize, are bans on abortion before viability, the Court's line.
He says instead that the ability to feel pain “approximates viability.” He added, “We have instances of children born at 19 weeks gestation living.”
According to the American College of Obstetricians and Gynecologists, “Most obstetrician-gynecologists understand fetal viability as occurring near 24 weeks gestation utilizing LMP dating.” That’s dating from a woman’s last menstrual period, theoretically two weeks before fertilization; no matter how you count it, you don’t get to viability at 20 weeks.
But what matters, in the end, is not scientific evidence, but what one Justice will believe. It surely helps, too, if such laws are passed in as many states as possible to signal the democratic will (or the savvy takeover of state legislatures). In June a 20-week ban passed the U.S. House of Representatives, and Marco Rubio recently said he will sponsor a version in the Senate.
There are conservatives who argue against federal meddling in states’ rights on abortion. "We’re not fighting over states' rights," Bopp says. "What we’re fighting over is protecting the unborn."
The 20-week ban is unlikely to even get a vote in the Senate, and President Obama has promised a veto. Bopp is unperturbed. “Legislation is often a process, not an event. It takes time.” And they've waited this long.
The back-door strategy
Most restrictions on abortion won’t make it to the Supreme Court. A woman's access to the procedure often hangs on what kind of federal judge presides over the area where she lives, and whether or not that judge thinks the various laws cooked up by Republican legislators are “undue burdens.” (You can usually, but not always, guess by whether they were appointed by a Republican or a Democrat.) "Undue burden" is the shaky standard left behind by Casey, the limits of which the anti-choice movement is continually pressing.
The Casey ruling has led to the often-obscure clinic restrictions passed in various forms across the country, some of which haven’t been challenged in court. (That's the easiest way to end-run Roe: pass a law that violates it but that, for strategic or logistical reasons, won't go to court.) Yoest calls them “plain-vanilla, uncontroversial kinds of things that the American people will support in post-Gosnell America.” The laws' supporters--who would like to see all abortions banned--generally say the restrictions are a reasonable use of the state’s regulatory powers and protect women, even if the effect (already felt in several states, including Texas and Virginia) is to shut down clinics.
But Jennifer Dalven, the director of the ACLU’s Reproductive Freedom Project, calls them “backdoor attempts to ban abortion by enacting measures that everyone knows are designed to do nothing other than shut down clinics and prevent women from getting access to medical care.” The difference is more than rhetorical: It determines whether clinics stay open or not. The challenges are in early stages, says Dalven, but “in Alabama and Wisconsin the courts have recognized them for what they are: attempts to prevent women from getting abortions.” That's still not allowed under Supreme Court precedent.
Litigators have used the argument that the laws are tantamount to an illegal ban in order to keep the doors open at the last remaining clinic in Mississippi, which has been unable to get any local hospital to grant its doctors admitting privileges under a recent state law. The new law was heralded by legislators as helping make the state “abortion-free.” That may be enough to deem it unconstitutional.
Bopp is unfazed by the mixed results for such laws in courts so far. “When you have hundreds and hundreds of federal judges, way too many of them appointed by liberal presidents, they make mistakes,” he says. “I don’t think it’s even arguable that the Supreme Court will uphold reasonable regulations.”
First, the court would have to agree to take such a case, or any other abortion case, inviting the bitter controversy that comes along with it. Four justices have to vote to accept a case, and some court-watchers believe that if a 20 week ban case is accepted--say, Arizona’s--it will mean that Justice Kennedy is ready to concede the viability line, because the conservative justices won’t take a case that would risk reaffirming Roe again.
On an even faster track is an Oklahoma law heavily restricting medication (as opposed to surgical) abortions; the Supreme Court recently expressed interest but asked for more information from a state court. Either way, says Dalven, “Whether they want to get to the Supreme Court in five years or 10 years, their goal all along the way is to prevent all women from getting an abortion.”